PROSECUTOR Jerry Noge smiles from the pages of Khasho, journal of South Africa’s National Prosecuting Authority. It’s September 2012 and he has reason to be pleased: he has just won a convincing victory in a terrible rape case.

He tells how Mongezi Motshesane, 38, repeatedly raped his 80 year old neighbour through the night of 6 April 2012. Just four months later the Viljoenskroon regional court has sent Motshesane to jail for life, the minimum sentence for multiple rape.

Noge explains to Khasho that Motshesane’s niece called him to the farm outside Viljoenskraal where his children lived to make some school arrangements. He arrived drunk. Just before sunset he noticed his 80 year old neighbour sitting alone outside. He forced her into her house and raped her repeatedly through the night, leaving just before sunrise.

The elderly woman could not walk after this ordeal and had to sit in her room until a care-giver arrived in the afternoon. Only then were the police told. They arrested Motshesane soon after.

Noge describes Motshesane as a danger to society who took advantage of the Easter holidays when most people were away. He tells Khasho after the trial that it was extremely traumatic for the woman; she didn’t want to continue with the case and relive the experience. They persuaded her by saying this was the only way that society would rid itself of such people.

Noge says the rape changed her life. She was withdrawn and no longer associated with other people. He is ‘relieved’ by Motshesane’s life sentence because his evil deed means an elderly woman would no longer live a normal life.

But that was then. Since the interview Motshesane has appealed. This week the high court in Bloemfontein gave its decision and acting judge S J Reinders, who wrote the decision, found a major flaw in the case. The charge sheet did not make reference to more than one rape, and the magistrate convicted Motshesane ‘as charged’ – in other words of one rape.

Motshesane’s lawyers argued the evidence didn’t show that the woman had been raped more than once. The judge revisited the testimony and according to the record the woman was asked what she meant by saying Motshesane had ‘intercourse’ with her – the case was conducted in Afrikaans and the word used was ‘gemeenskap’. ‘What exactly did he do?’

She replied that he ‘did all kinds of things to me; he hurt me because he slept with me the whole night long; he only left in the morning.’

Then the prosecutor asked: ‘Now, during the night, how many times did he have intercourse with you?’ She said: ‘It was the whole night and he made me sore. He … we didn’t sleep at all that night. He was busy with me the whole night.’

The judge commented that this evidence could not be said to show, beyond reasonable doubt, that there are been multiple penetrations or rapes. The woman had simply not testified that this happened.

If the prosecutor wanted to prove multiple rape he could have asked her in more detail. He didn’t do so, and she didn’t say that she had been raped more than once.

In addition, the charge sheet listed ‘an act’ of penetration and the accused was found guilty ‘as charged’, in other words, of one count, for which the minimum sentence was 10 years.

The judge considered that Motshesane had no formal schooling and no work. He had previous convictions for assault and stealing livestock, but for the purposes of sentence in this case was regarded as a first offender.

He also considered that the woman was elderly and was raped in the sanctuary of her home. She was helpless and, though she didn’t sustain permanent injuries, she walked with difficulty as a result of the attack and her speech was affected. Motshesane was her neighbour and arrived at her home naked from the waist down.

The judge noted that he could find no substantial or compelling reason to deviate from the 10 year minimum sentence applicable in this case. Even if there was no minimum sentence, he said, he would have found 10 years appropriate.

Now we’re left asking what went wrong: Was there generational or cultural miscommunication? Was there a problem interpreting ‘safe’ words for sex? Should the prosecutor have been more blunt in his questions? And, perhaps most difficult of all, how will the woman feel about the appeal outcome?